Gavin Howe
Infringement law deals with the unauthorized use of copyright and other intellectual property. There are several types of infringement, including copyright infringement, trademark infringement, and patent infringement. To prove infringement, one must usually have a valid trademark, copyright, or patent in place and provide evidence that the defendant used the material, artistic work, or invention without notifying the owner. For example, in the US, trademark law protects a trademark owner's exclusive right to use a trademark when another entity's use of the mark would likely cause consumer confusion as to the source or origin of goods. In the EU, the Commission may take legal action against an EU country that fails to implement EU law, which can result in financial sanctions.
| Characteristics | Values |
|---|---|
| Definition | Infringement laws deal with the unauthorized use of copyright and other intellectual property. |
| Types | Copyright infringement, trademark infringement, secondary infringement (contributory and vicarious) |
| Requirements for proof | Valid copyright, trademark, or patent; evidence that the defendant used the material, artistic work, or invention without notifying the rights owner. |
| Remedies | Cease and desist letters, federal lawsuits, statutory damages, attorney's fees, prohibition on continuing to use the work. |
| Penalties | Criminal penalties for willful copyright infringement, including imprisonment for up to 5 years, fines of up to $250,000, or both per violation. |
| Defenses | Fair use, collateral use, laches, estoppel, unclean hands. |
| EU Procedures | The European Commission may launch a formal infringement procedure against EU countries that fail to implement EU law or rectify suspected violations. |
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What You'll Learn
Criminal penalties for willful copyright infringement
Infringement laws deal with the unauthorized use of copyright and other intellectual property. In the case of willful copyright infringement, the infringing party may also be held criminally responsible and liable to criminal penalties, including imprisonment for up to 5 years, fines of up to $250,000, or both per violation.
Willfulness in the context of copyright infringement means that the infringing party was given legal notice that their conduct was infringing or that they had notice that their conduct was illegal. For example, if someone repeatedly takes their camera phone to film the screen at advance movie screenings and uploads the footage online, despite receiving several cease and desist letters from the motion picture studio, a court is likely to deem their actions as willful.
To prove infringement, a valid copyright, trademark, or patent must be in place. Evidence must also be provided that the defendant used the material, artistic work, or invention without notifying the rights owner. The rights owner must also prove that the defendant's actions were carried out for commercial advantage or private financial gain.
The Digital Millennium Copyright Act (DMCA) prohibits circumventing access controls and trafficking in technology or services that facilitate circumvention. If someone tries to circumvent a copyright control, such as digital rights management (DRM) technology or encryption, they may face criminal penalties. It is also illegal for someone to provide tools that enable others to circumvent access or copy controls.
The federal government carefully considers whether to criminally prosecute someone for criminal copyright infringement. The two biggest factors that federal prosecutors consider are the seriousness of the offense and the likelihood of a successful prosecution. The seriousness of the offense is determined in part by the number of copies and their worth.
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Royalty disputes
Infringement laws deal with the unauthorized use of copyright and other intellectual property. Royalty disputes arise in connection with copyrighted material. Royalties are small fees paid by one person each time they use another person's copyrighted material. Royalty disputes refer to legal disagreements between parties over the payment or distribution of royalties. These disputes may arise in situations where there is a disagreement over the amount or frequency of royalty payments, the ownership or validity of the intellectual property or mineral rights, or the terms of the licensing agreement.
In the context of business, real estate, or technology law, royalty disputes may be resolved through negotiation, mediation, or litigation. If the dispute involves royalties related to natural resources, such as oil and gas royalties, then the law would be governed by provincial legislation such as the Oil and Gas Activities Act or the Mineral Tenure Act. In such cases, the parties involved in the dispute would need to seek legal advice and potentially engage in mediation or litigation to resolve the issue. Royalty disputes can impact small businesses if they are involved in the use of intellectual property or mineral rights. If a small business pays royalties to the owner of such rights, a dispute over the amount or frequency of payments can lead to financial strain and potential legal action.
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Trademark infringement
Infringement laws deal with the unauthorized use of copyright and other intellectual property. Proving infringement usually requires a valid trademark and evidence that the defendant used the trademark without notifying the person with ownership rights.
In some cases, trademark infringement can occur when a trademarked product is used in a way that implies endorsement by the trademark owner. For example, fashion designer Philipp Plein was accused of trademark infringement by Ferrari for using images and videos of Ferrari cars in a way that implied endorsement.
To avoid trademark infringement, it is important to conduct thorough trademark research and create distinctive designs that are protected under trademark law. In the case of Starbucks v. Coffee Culture Cafe, more effective trademark research by Coffee Culture Cafe could have prevented the infringement lawsuit. Additionally, seeking legal advice from an intellectual property lawyer can help businesses understand their rights and avoid potential trademark infringement.
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Secondary infringement
In the context of copyright law, secondary infringement can occur when a third party intentionally or knowingly induces an infringement or provides the primary infringer with the means to commit the infringement. For example, a store that sells copies of an infringing work or a company that markets the infringing product may be considered secondary infringers. A copyright owner may be able to sue these secondary infringers, particularly if the primary infringer lacks the resources to pay a judgement, as they are usually larger entities.
The threshold requirement for a claim of secondary infringement is the existence of direct infringement. Additionally, there must be a showing that the secondary infringer knew of the intellectual property rights and that their actions would lead to an infringement. This can be demonstrated through direct or circumstantial evidence, such as the recognisability of the copyrighted work in a certain area or industry.
In the United States, the Supreme Court has articulated a theory of secondary liability, where a party that distributes a device with the object of promoting its use to infringe copyright can be held liable for resulting acts of infringement by third parties. This was demonstrated in the 2005 case of MGM Studios v Grokster. However, the Court clarified that mere knowledge of infringing uses and actions, such as providing technical support, would not constitute inducement on its own.
Similarly, in the European Union, infringement procedures can be launched against EU countries that fail to implement or comply with EU law. These procedures follow a series of steps outlined in the EU treaties, and financial sanctions may be imposed by the Court of Justice.
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EU infringement procedure
The infringement procedure is a prelitigation tool that allows EU countries to remedy any violations of EU law voluntarily. The European Commission publishes information on its enforcement activities, member state compliance with EU law, and decisions on infringements online and through interactive maps and customisable graphs. The Commission will only process a complaint if the breach of EU law is committed by a public authority in an EU country, and even then, it is not obliged to launch an infringement procedure.
The infringement procedure follows a number of steps laid out in the EU treaties, each ending with a formal decision. First, the Commission sends a letter of formal notice requesting further information to the country concerned, which must send a detailed reply within a specified period, usually 2 months. If the Commission is still not satisfied, it may send a reasoned opinion, a formal request to comply with EU law. This also requests that the country inform the Commission of the measures taken, again within a specified period, usually 2 months.
If the country still doesn't comply, the Commission may decide to refer the matter to the Court of Justice. The Court of Justice may impose financial penalties. For example, in February 2015, the European Commission referred Austria to the European Court of Justice for failing to comply with its obligations under Regulation 181/2011 on Bus and Coach Passenger Rights. The case was closed in September 2015 after Austria took the necessary measures to comply.
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Frequently asked questions
Infringement laws deal with the unauthorized use of copyright and other intellectual property.
Trademark infringement occurs when a defendant uses the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the owner's permission, causing consumer confusion as to the source or origin of the goods.
Copyright infringement occurs when another party uses a copyrighted work in a way that violates the owner's exclusive rights, such as reproducing or distributing the work to the public, without permission.
Secondary infringement includes contributory and vicarious infringement, which have arisen as prohibitions under case law rather than being expressly prohibited under the Copyright Act. Contributory infringement occurs when someone knowingly induces, causes, or materially contributes to copyright infringement, while vicarious infringement refers to a superior party profiting from the infringement of a primary or direct infringer under their authority.
Infringement cases are usually addressed through civil lawsuits, but criminal penalties may also be imposed in cases of willful infringement, including imprisonment, fines, or both per violation.
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